Treaty of Point Elliott

1855 treaty between the US and Native Americans

The Treaty of Point Elliott of 1855, or the Point Elliott Treaty,—also known as the Treaty of Point Elliot / Point Elliot Treaty—is the lands settlement treaty between the United States government and the Native American tribes of the greater Puget Sound region in the recently formed Washington Territory (March 1853), one of about thirteen treaties between the U. S. and Native Nations in what is now Washington. The treaty was signed on January 22, 1855, at Muckl te oh or Point Elliott, now Mukilteo, Washington, and ratified 8 March and 11 April 1859. Between the signing of the treaty and the ratification, fighting continued throughout the region. Lands were being occupied by European Americans since settlement in what became Washington Territory began in earnest from about 1845. Signatories to the Treaty of Point Elliott included Chief Seattle (si'áb Si'ahl) and Territorial Governor Isaac Stevens. Representatives from the Duwamish, Suquamish, Snoqualmie, Snohomish, Lummi, Skagit, Swinomish, (in order of signing) and other tribes also signed. The treaty established the Suquamish Port Madison, Tulalip, Swin a mish (Swinomish), and Lummi reservations. The Native American signers included Suquamish and Dwamish (Duwamish) Chief Seattle, Snoqualmoo (Snoqualmie) and Sno ho mish Chief Patkanim as Pat ka nam, Lummi Chief Chow its hoot, and Skagit Chief Goliah. The Duwamish signatories to the Point Elliott Treaty of January 22, 1855 were si'áb Si'ahl as Chief Seattle, and Duwamish si'áb Ts'huahntl, si'áb Now a chais, and si'áb Ha doo an. The treaty guaranteed both fishing rights and reservations. Reservations were not designated for the Duwamish, Skagit, Snohomish, and Snoqualmie peoples.

The Nonintercourse Act of 1834 specifically prohibited White American intrusion into Indian territories. The Oregon Donation Land Claim Act of 1850 opened Oregon Territory to European American settlement; Washington Territory had a similar law. The law sunset 1 December 1855; settlers had to file their land claims by that date, so White leaders had incentive to get treaties signed with Native Americans as speedily as possible to enable development by whites. Under the laws encouraging settlement, each male settler could homestead and receive free for himself and 640 acres with his wife (women could not individually hold property). Settlers arriving before 1850 could receive , or 1 Regular Section, one square mile. Claims were made by unilateral occupation, implicitly backed by militia if not military. Native Americans were disconcerted by the encroachment of the settlers on their territory, and sometimes reacted by making raids or forming uprisings against them. By and large, Native leaders were willing to sell their land (although they had utterly different conceptions of land use and no cultural comprehension of European American property rights concepts). They rejected proposals for their relocation from Puget Sound country. The courts have said that the power of Congress in Indian affairs is plenary (full and complete)—great but under present law not absolute. The federal government and tribes are co equal sovereign entities; the tribal governments predated the existence of the United States. One of the basic principles underlying Indian nations is that they "retain all the inherent powers of any sovereign nation", retaining all original sovereign rights and powers "which have not been given up or taken away by due process" of law. Courts have ruled that the "intent of Congress to limit the sovereign powers of Indian governments by legislation must be clearly expressed in the law in order to be effective" (in legal terminology, per Saito, Georgia State University College of Law). [Emphasis added.] The U. S. Constitution, Article 6, states:
This Constitution, and the laws of the United States which shall be made in persuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. [Emphasis added.] Particularly since the rise of Native American activism in the late twentieth century, there have been new legal challenges to numerous treaties, land settlements, and terms of treaties. The Supreme Court has ruled that there are "canons of construction" for interpreting treaties; of the two principal canons, one is that they are to be interpreted as they would have been understood by the signatories. The Supreme Court has ruled that "Treaties are to be construed as a grant of rights from the Indians, not to them—and a reservation of those not granted." (This principle has guided, for instance, the retention of Native Americans of traditional rights to fish and hunt on land ceded to the government, unless those rights were specifically restricted. A treaty broken is not rescinded. Only a following treaty or agreement can relieve signatories of the original treaty. "Treaties are as old and as venerable as the Constitution of the United States. Age does not impair their validity or legality." [Deloria, 1994]

Indian tribes, for the most part, were not parties to and rarely agreed with the diminution in their sovereign powers by the alien tradition of European law. They have often claimed, in cases since the late twentieth century, to retain greater sovereign powers than federal Indian law is prepared to concede. The resulting political dynamic has resulted in tensions and disputes among tribal, federal, and state governments about sovereign powers and jurisdiction denied to tribes by the colonial justifications underlying federal law, which tribes and members point out they never voluntarily surrendered. Diminution of sovereignty is usually absent from accession of lands.

Chiefs, as such, were appointed by Governor Stevens, though the treaty states "on behalf of said tribes, and duly authorized by them".

For various reasons, the Nooksack, Semiahmoo, Lower Puyallup and Quileute tribes did not take part in the treaty councils, though the rights of the Nooksack were signed over by the Lummi chief Chow its hoot, without their presence. Samish attendance was documented by ethnologist George Gibbs and officially reported by Governor Issac Stevens. Although the Samish were listed next to the Lummi in the first draft of the treaty, it appears that line was inadvertently omitted during transcription of the final draft. Several tribes, such as the Duwamish and Snohomish, continue working toward official federal recognition.